[Federal Register Volume 83, Number 236 (Monday, December 10, 2018)]
[Rules and Regulations]
[Pages 63416-63418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-26607]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2018-1017]
RIN 1625-AA00


Safety Zone: Winter on the Waterfront Fireworks Display, 
Berkeley, CA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone in the 
navigable waters of San Francisco Bay near Berkeley Marina in support 
of the Winter on the Waterfront Fireworks Display on December 8, 2018. 
This safety zone is necessary to protect personnel, vessels, and the 
marine environment from the dangers associated with pyrotechnics. 
Unauthorized persons or vessels are prohibited from entering into, 
transiting through, or remaining in the safety zone without permission 
of the Captain of the Port of their designated representative.

DATES: This rule is effective from 3:00 p.m. to 6:45 p.m. on December 
8, 2018.

ADDRESSES: Documents mentioned in this preamble are part of docket 
USCG-2018-1017. To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type the 
docket number in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rulemaking.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Lieutenant Emily Rowan, U.S. Coast Guard Sector San 
Francisco; telephone (415) 399-7443 or email at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

APA Administrative Procedure Act
COTP U.S. Coast Guard Captain of the Port
DHS Department of Homeland Security
FR Federal Register
COTP Captain of the Port
NOAA National Oceanic and Atmospheric Administration
NPRM Notice of Proposed Rulemaking
PATCOM U.S. Coast Guard Patrol Commander
U.S.C. United States Code

II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary final rule without prior 
notice and opportunity to comment pursuant to authority under section 
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This 
provision authorizes an agency to issue a rule without prior notice and 
opportunity to comment when the agency for good cause finds that those 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a notice of proposed rulemaking (NPRM) 
with respect to this rule. Since the Coast Guard received notice of 
this event on November 7, 2018, notice and comment procedures would be 
impracticable in this instance.
    For similar reasons as those stated above, under 5 U.S.C. 
553(d)(3), the Coast Guard finds that good cause exists for making this 
rule effective less than 30 days after publication in the Federal 
Register.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231. The Captain of the Port (COTP) San Francisco has determined that 
potential hazards associated with the Winter on

[[Page 63417]]

the Waterfront Fireworks Display on December 8, 2018, will be a safety 
concern for anyone within a 100 foot radius of the fireworks barge and 
anyone within a 140 foot radius of the fireworks firing site. This rule 
is needed to protect spectators, vessels, and other property from 
hazards associated with pyrotechnics.

IV. Discussion of the Rule

    This rule establishes a temporary safety zone during the loading, 
staging, and transit of the fireworks barge, until after completion of 
the fireworks display. During the loading and staging of the 
pyrotechnics onto the fireworks barge, scheduled to take place from 
3:00 p.m. to 4:00 p.m. on December 8, 2018, at Berkeley Marina Ferry 
Dock in Berkeley, CA, the safety zone will encompass the navigable 
waters around and under the fireworks barge within a radius of 100 
feet.
    The fireworks barge will remain at Berkeley Marina Ferry Dock until 
the start of its transit to the display location. Towing of the barge 
from Berkeley Marina Ferry Dock to the display location is scheduled to 
take place from 4:30 p.m. to 5:00 p.m. on December 8, 2018, where it 
will remain until the conclusion of the fireworks display.
    At 5:00 p.m. on December 8, 2018, 30 minutes prior to the 
commencement of the two 3-minute fireworks displays, scheduled to start 
at 5:30 p.m. and 6:15 p.m., the safety zone will increase in size and 
encompass the navigable waters around and under the fireworks barge 
within a radius of 140 feet in approximate position 37[deg]51'58'' N, 
122[deg]19'11'' W (NAD 83) for the Berkeley Winter on the Waterfront 
Fireworks Display. The safety zone shall terminate at 6:45 p.m. on 
December 8, 2018.
    The effect of the temporary safety zone is to restrict navigation 
in the vicinity of the fireworks loading, staging, transit, and firing 
site. Except for persons or vessels authorized by the COTP or the 
COTP's designated representative, no person or vessel may enter or 
remain in the restricted areas. These regulations are needed to keep 
spectators and vessels away from the immediate vicinity of the 
fireworks firing sites to ensure the safety of participants, 
spectators, and transiting vessels.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on a number of these statutes and Executive orders, and we 
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits. Executive Order 13771 directs agencies to control 
regulatory costs through a budgeting process. This rule has not been 
designated a ``significant regulatory action,'' under Executive Order 
12866. Accordingly, this rule has not been reviewed by the Office of 
Management and Budget (OMB), and pursuant to OMB guidance it is exempt 
from the requirements of Executive Order 13771.
    This regulatory action determination is based on the limited 
duration and narrowly tailored geographic area of the safety zone. 
Although this rule restricts access to the waters encompassed by the 
safety zone, the effect of this rule will not be significant because 
the local waterway users will be notified via public Notice to Mariners 
to ensure the safety zone will result in minimum impact. The entities 
most likely to be affected are waterfront facilities, commercial 
vessels, and pleasure craft engaged in recreational activities.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended, requires federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. The term ``small 
entities'' comprises small businesses, not-for-profit organizations 
that are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule 
will not have a significant economic impact on a substantial number of 
small entities.
    This rule may affect the following entities, some of which may be 
small entities: Owners and operators of waterfront facilities, 
commercial vessels, and pleasure craft engaged in recreational 
activities and sightseeing, if these facilities or vessels are in the 
vicinity of the safety zone at times when this zone is being enforced. 
This rule will not have a significant economic impact on a substantial 
number of small entities for the following reasons: (i) This rule will 
encompass only a small portion of the waterway for a limited period of 
time, and (ii) the maritime public will be advised in advance of these 
safety zones via Notice to Mariners.
    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this rule. If the rule would affect your 
small business, organization, or governmental jurisdiction and you have 
questions concerning its provisions or options for compliance, please 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247). The Coast Guard will not retaliate against small 
entities that question or complain about this rule or any policy or 
action of the Coast Guard.

C. Collection of Information

    This rule will not call for a new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this rule under that Order and have 
determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in Executive Order 
13132.
    Also, this rule does not have tribal implications under Executive 
Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it does not have a substantial direct effect on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes. If 
you believe this rule has implications for federalism or Indian tribes, 
please contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section above.

[[Page 63418]]

E. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 (adjusted for 
inflation) or more in any one year. Though this rule will not result in 
such expenditure, we do discuss the effects of this rule elsewhere in 
this preamble.

F. Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.1D, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that 
this action is one of a category of actions that do not individually or 
cumulatively have a significant effect on the human environment. This 
rule involves a safety zone of limited size and duration. It is 
categorically excluded from further review under Categorical Exclusion 
L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, 
Rev. 01. A Record of Environmental Consideration supporting this 
determination is available in the docket where indicated under 
ADDRESSES.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority:  33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 
0170.1

0
2. Add Sec.  165.T11-960 to read as follows:


Sec.  165.T11-960   Safety Zone; Winter on the Waterfront Fireworks 
Display, Berkeley, CA

    (a) Location. The following area is a safety zone: All navigable 
waters of the San Francisco Bay within 100 feet of the fireworks barge 
during loading and staging at Berkeley Marina Ferry Dock, Berkeley, as 
well as transit and arrival to the display location. From 3:00 p.m. on 
December 8, 2018 until approximately 4:00 p.m. on December 8, 2018, the 
fireworks barge will be loading and staged at Berkeley Marina Ferry 
Dock. The safety zone will expand to all navigable waters around and 
under the firework barge within a radius of 140 feet in approximate 
position 37[deg]51'58'' N, 122[deg]19'11'' W (NAD 83) 30 minutes prior 
to the start of the two 3-minute fireworks displays, scheduled to begin 
at 5:30 p.m. and 6:15 p.m. on December 8, 2018.
    (b) Enforcement period. The zone described in paragraph (a) of this 
section will be enforced from 3:00 p.m. on December 8, 2018 until 
approximately 6:45 p.m. on December 8, 2018. The Captain of the Port 
San Francisco (COTP) will notify the maritime community of periods 
during which these zones will be enforced via Notice to Mariners in 
accordance with 33 CFR 165.7.
    (c) Definitions. As used in this section, ``designated 
representative'' means a Coast Guard Patrol Commander, including a 
Coast Guard coxswain, petty officer, or other officer on a Coast Guard 
vessel or a Federal, State, or local officer designated by or assisting 
the COTP in the enforcement of the safety zone.
    (d) Regulations. (1) Under the general regulations in 33 CFR part 
165, subpart C, entering into, transiting through, or anchoring within 
this safety zone is prohibited unless authorized by the COTP or the 
COTP's designated representative.
    (2) The safety zone is closed to all vessel traffic, except as may 
be permitted by the COTP or a designated representative.
    (3) Vessel operators desiring to enter or operate within the safety 
zone must contact the COTP or a designated representative to obtain 
permission to do so. Vessel operators given permission to enter or 
operate in the safety zone must comply with all directions given to 
them by the COTP or a designated representative. Persons and vessels 
may request permission to enter the safety zones on VHF-23A or through 
the 24-hour Command Center at telephone (415) 399-3547.

    Dated: November 29, 2018.
Anthony J. Ceraolo,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco.
[FR Doc. 2018-26607 Filed 12-7-18; 8:45 am]
 BILLING CODE 9110-04-P